Do students know best about teaching?

In the Conversation today ( 30th November 2015) there is an article entitled ‘Students don’t know what’s best for them’. — It argues that students often rate teachers best who make it easier for them, and that students don’t understand when they are learning and when they are not. So they think they have learned if the task they are doing is easy.

I am not entirely certain that a thoughtful student can’t go beyond this, but I think another thing the article suggests is very important. That is that the amount of learning being done is very often significantly connected to the amount of effort being put in.  More importantly, other educational evidence suggests that students continue to try hard and cheat and plagiarise less when they are praised for effort rather than achievement.

So for teaching purposes this suggests that finding ways to motivate students to try hard may at the very least make them learn better. Whether they recognise that they have done so may be another matter.!



Dennis Denuto…

As this blog’s name references the wonderful Australian film The Castle, I thought it was important to let everyone know that its well meaning but bumbling solicitor, Dennis Denuto, has now been immortalised in the Queensland District Court.

In Smith v Lucht [2015] QDC 289 (20 November 2015) a messy family law matter was the basis for a defamation action by a solicitor against his daughter-in-law’s ex husband for calling him “Dennis Denuto”.  There is now grave judicial pronouncement that:

There is little in the film to indicate how the character Dennis Denuto conducted other cases, his general experience and skills (other than his claim he did “small stuff”), or his client base. He was not characterised as unethical; however he was portrayed as incompetent and unprofessional in the scene set in the Federal Court. The reasonable reader or listener would understand the ordinary and natural meaning of the words ‘Dennis Denuto’ to include by implication or inference the defamatory imputation that the plaintiff is incompetent and unprofessional


the circumstances of publication were such that the plaintiff was unlikely to sustain any harm to his reputation as the statements were confined to two members of his family with whom the defendant was in dispute, and they were able to make their own assessment of the imputation.

In so holding Moynihan QC DCJ did not take into account the widespread press coverage of the legal action (which if his Honour had would have resulted in an award of $10,000 damages).

Alex Steel

Academic greetings and what they may signify

As I come to the end of a busy few weeks meeting with American law academics I have been struck by many things I never noticed when I was a US law academic.  Perhaps the first thing which I have noticed again and again on this trip is that when meeting American law academics, whether at an elite or local US law school, their first question of a professional nature has so far always been “what do you teach?”  Not what are you working on at the moment (as in research or writing).  Indeed, the whole conversation may never raise research or writing.  In contrast, my experience when meeting European or Australian law academics is that they ask about research and writing first and may not even ask about teaching.

No doubt there are many explanations for the above (assuming it is an accurate reflection of the legal academic cultures).  Though, I tend to think that it is is less about enthusiasm (or not) for teaching or research but rather reflects the focus of law school missions.  In the US law schools exist primarily to train lawyers. Outside the US it is certainly the case that a law faculty must teach students about the law, even perhaps with the idea that some (perhaps most) may practice.  But, the role of the non-American academic may be much more orientated towards research and writing than may be the case in the US where the academic may be more oriented towards their students’ development. (an orientation reinforced by performance metrics).

Of course, the above is a generalization.  Many law schools outside the US, such as UNSW’s law school, focus heavily on legal training.  And in some American law schools one may be forgiven for thinking that the students are just an annoyance in the way of their professors’ careers (I certainly felt that at times as a law student).  Also, we may be seeing non-American schools slowly moving towards the student-focused US approach.  Nonetheless, I think the difference in how we greet each other reflects some real and deep-seated differences.  This is not to say one approach is better than the other, just that they are different and may reflect different contexts.  Accordingly, transnational legal academic projects and relationships need to keep these sorts of differences in mind.

Colin Picker

One Day Symposium: Teaching Legal Analysis and Writing Dec 10th : Melbourne Law School

Melbourne Law School, Melbourne University, is hosting a one day symposium on Teaching Legal Analysis and Writing Skills on Thursday, December 10, 2015, from 8:30 AM – 5:15 PM, at 185 Pelham Street, Carlton, VIC. Faculty from New Zealand, the United States of America, and 8 law schools in Australia are attending.

The symposium will be an opportunity for professional development in a stimulating and interactive series of sessions.  Topics include:

  • Using games to stimulate student learning
  • How to develop online teaching and learning materials
  • Creative methods of demonstrating legal concepts and reasoning in the classroom
  • The variety of legal writing exercises that might be used to teach and assess analysis and communication skills

This is a great opportunity to share promising practices in teaching legal analysis and writing.

If you have any questions about the symposium, please contact Dr Chantal Morton at chantal.morton  @





Paolo Freire and Testing Assumptions

Recently I saw an article in a newspaper raging about how Paolo Freire had taught South Americans to take ‘left wing’ views. The fact that the South Americans Paolo Freire was working with were amongst the most downtrodden and poor of those in South America seems to have passed the author by. What Paolo Freire taught those people was to ask questions and not to simply accept answers without testing them. This is a fundamental aspect of education. It may or may not lead to revolution; but it will lead to change of some kind. The outrage at the ‘political’ nature of this sort of education is based on the idea that things should stay the same. The people who want things to stay the same are usually those who are benefiting from it.

In first year teaching we often have very bright students who have been well trained and who can answer questions within a given set of parameters very quickly. But some of them have never really used the excellent brain they were given. We can take the opportunity to let them see what it is like to really use your brain. The secret is simple – it is to ask questions, and to keep on asking questions, and when the answers come, it is to test those answers against material which you know to be true – because you asked questions about it and tested the answers.

In my first year law classes I try to have one two hour class where we only have questions. As usual they are required to do their reading. I choose something from the reading, eg a case, and tell them that they need to think of a question which would illuminate this reading. WE go round the class, each asking a question. There are no answers. I do not answer and I do not permit them to answer. They have to keep asking questions. I write the questions on the whiteboard. Normally they think once everyone has asked a question that there are no more, but I don’t let them stop. As we keep going and they struggle to come up with questions their questions change quality and become larger and often more about evaluation; they find themselves asking profound questions about the item, going into philosophical questions, historical questions and beyond.

After this we spend some time looking at all the questions on the whiteboard and I ask them questions about the questions –

  • Which questions have a yes/no answer?
  • Which questions can be answered with certainty?
  • Which questions are historical?
  • Which questions evaluate something?
  • How else could you think about these questions?
  • What assumptions underlie these questions?

I find that this class has a significant effect on my students. They seem to suddenly understand the process of analysis that is required in university work when many of them did not before. And they have learned new types of questions and I hear these questioned repeated later on in the semester as they take them on as their own.

This is the kind of education that Paolo Freire wanted to begin with. Neil Postman and Charles Weingartner wrote a book about it called Teaching as a Subversive Activity. I wish I were brave enough to run more of my classes like this instead of assuming my students may need more content explained to them.


Law schools, law schools everywhere …

With the news that Charles Sturt University will be offering an online LLB in 2016, Australia is fast approaching a situation where every full university has a law school. In terms of public universities only Federation University is still without a law school.
In addition, accredited law schools exist in the private universities of Bond, Australian Catholic and Notre Dame, and from 2016 the private non-university provider of Top Education Institute.
That makes 38 accredited law schools pumping out increasing numbers of law students. The number of graduate legal positions isn’t exponentially increasing as the graduates do. Medicine has a model of only admitting as many students as the profession needs. Clearly that approach is wrong for law. While a fully qualified medical student might be unemployable in any other field, or the cost of their education is so great that the taxpayer can’t justify medical qualifications for other fields, neither argument applies for law.
A law degree is a valuable basis for a range of professions, and generally as a formative start to life-long learning. But the huge number of law schools does raise the awkward question of how to see – and truthfully market – a law degree as both a possible path to legal practice and as also an adjunct to another career. As a discipline are we largely now training non-lawyers in most law schools? Is this also having a deleterious effect on students wanting to become lawyers, who are now increasingly being told that to get a look-in at an interview they will need a swag of extra curricula acheivements/volunteering and probably years as a paralegal – all of which leaves less time for actually studying law.

Alex Steel

Empathic imagination as an intellectual tool

I think we think we miss a vital element of education. In Australia we talk about values to children in primary school and talk about respect and so on, then in highschool it is done less and then in legal education we talk about ethics, but we do not focus on the critical intellectual skill which is required before ethics can work.
I am talking about the use of our empathic imagination. This is what is also known as ‘walking in their shoes’. I am not talking about sympathy which is feeling sorry for a person and treating them as a victim. I am talking about understanding what life is like for someone else. There is neurological evidence that this begins in a child with the ‘mirror neurons’ which develop as the child realises that there are other people in the world who also feel. People who cannot understand this are called ‘sociopaths’. We have far too many of them… but I am talking about why in a legal education you might encourage developing empathic imagination as an intellectual tool.
Two classic scenarios can illustrate why this is useful in a legal education. First, the assessment of damages for personal injury. This requires a careful, reasoned approach to the question ‘what is life like for this person who is not me?’ For example, if this person has lost a leg, how will they respond to life? Careful thought about their position will reveal that they will not be able to pop down to the shops the way they used to, that their job which required working will no longer be possible, and that everything else which required walking is no longer possible. If hiking was their major hobby then not only will they not be able to do it, there will be a major hole in their life – friendships developed through hiking may collapse, a whole social life may be destroyed. I need not go on. This is ordinary stuff for lawyers, but the failure to do it well can be the difference between damages which will really help the situation and damages which won’t.
Another classic scenario is to have people in one class see what life is like for another , for men to see what life is like for women and vice versa, for non-Aboriginal people to see what life is like for Aboriginal people. Again, this is not about sympathy, which can merely emphasise victimhood. This is about clear-eyed consideration of all the factors which flow logically from the situation. This must be practised. It must be thought about hard, and it requires us to check our assumptions about how things work.
A classic example of this going wrong is where the High Court assessed damages in Sharman v Evans (1977) 138 CLR 563. The plaintiff had become a high level quadriplegic. Apart from losing all her employment prospects, she could not sit up, feed herself and had lost the power of speech. She had complete knowledge of her situation. Gibbs and Stephens JJ (at [27]) thought her general damages should be reduced from the high level awarded by the trial judge because:
‘The present plaintiff still possesses powers of enjoyment through the use of her senses; her sight, her hearing and her taste are unaffected and in place of sport, entertainment, cosmetics and clothes she may find pleasure in recorded music, in a movie projector and the hire of films, in days spent on drives in a chauffeured car, perhaps in special foods. She can thus experience pleasure and ward off melancholia by such distractions as may be to her taste and within her means. Many of her former modes of enjoyment are closed to her but some new ones remain to be explored and from which she will be capable of deriving pleasure. ‘
Each year when I teach damages and read this paragraph to my students I hear them gasp in disbelief. At that stage I know they are exercising empathic imagination, but were the judges? I believe they were blinded by their fear of over-compensation.
Teaching this needs to be done as a skill which needs to be practiced. One has to imagine what life is like in a certain set of circumstances and then taking the logical intellectual steps which follow. This should be the bedrock of social justice – not woolly emotionalism, but a clear-eyed view of reality.

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